Meeting Agenda
Matters concerning the Constitution of Japan
1. A report was presented on the open hearing held in Kanazawa (May 12, 2003)
Reporter: SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
2. Reports were heard from the chairperson of each subcommittee; this was followed by free discussion among members.
Report of the Subcommittee on Security and International Cooperation, and
free discussion
<<International Organizations and the Constitution: In Connection
with Security and International Cooperation >>
Report from subcommittee chairperson (main points)
NAKAGAWA Shoichi (Subcommittee Chairperson)
>> While the United Nations and non-governmental organizations (NGOs) are performing important role functions in the field of international cooperation, the role of the United Nations in the field of security has come under question since the Iraq crisis. The Subcommittee was able to arrive at a general consensus on these issues. On the other hand, the views of the members of the Subcommittee remained at variance on the following questions: how to improve the performance of the United Nations in security matters and how Japan should participate in such undertakings; and, what should be the position of NGOs in Japan's social system. In light of the need to develop countermeasures to terrorism and the growing importance of the role of NGOs, it is necessary to promptly develop a consensus on constitutional matters which relate to these issues.
>> It will be necessary to further deepen our discussions of matters related to Japan's security and international cooperation while taking the above points into consideration.
Free Discussion
KANEKO Tetsuo (Social Democratic Party)
>> While it is true that the United Nations needs to be reformed in certain areas, the important thing is to verify the performance of the United Nations against the UN Charter and the Constitution of Japan. The UN Charter is founded on the same spirit that sustains Japan's Peace Constitution. Therefore, Japan should focus its efforts on the maintenance of peace centering on the United Nations.
>> The invasion of Iraq was not supported by a UN resolution and contradicts the UN Charter because it was a preemptive attack. The postwar reconstruction of Iraq should be undertaken based on a UN resolution. Upon passage of such a resolution, Japan should discuss what is expected of it in the reconstruction of Iraq and what it can do within the framework of the Constitution. The dispatch of Self-Defense Forces to Iraq should take into account the fact that the Iraqi people do not welcome the landing of foreign military forces.
>> NGOs are performing a very important role in the field of humanitarian assistance by complementing the diplomatic efforts of the government. I believe it conforms with the Constitution's principle of pacifism to undertake diplomatic efforts based on close cooperation between NGOs and the government, while ensuring the originality and autonomy of NGOs.
OKUNO Seisuke (Liberal Democratic Party)
>> The permanent members of the UN Security Council are the victors of World War II, and Japan and Germany remain identified as "enemy states" notwithstanding the fact that they defray a considerable portion of the UN budget. For this reason, Japan should emphasize internationalism instead of UN-centeredness and commit itself to the creation of a new international organization.
>> Japan was branded an aggressor nation by the policies of the Occupation and the Military Tribunal for the Far East. Consequently, its spirit has been atrophied. While Japan did some regrettable things, the international society was not without blame either. The Research Commission on the Constitution must endeavor to help the people understand the correct facts.
NAKAGAWA Shoichi (Liberal Democratic Party)
(Responding to Mr. KANEKO)
>> Mr. SATO (informant at the May 8, 2003 Subcommittee meeting) pointed out that Japan's image of the United Nations differs from the reality, and that the Security Council is dominated by the victor countries. In light of these points, I believe the time has come for Japan and other major countries to probe and to ascertain how the United Nations can respond to the expectations of the international society.
>> Regarding Iraq's postwar reconstruction, Mr. KANEKO has expressed doubts concerning the dispatch of Self-Defense Forces. But what is needed is the ability to develop flexible responses to the Iraqi situation where various dangers and risks can be foreseen. We should not engage in discussions without presenting concrete and viable measures.
HARUNA Naoaki (Japanese Communist Party)
>> It is important to consider the subject of "International Organizations and the Constitution" from the following perspectives: (a) the meaning and significance of the war in Iraq, (b) actions of the United Nations regarding the Iraqi problem, (c) how Japan's support and response to the war in Iraq has been evaluated.
>> We must develop a clear awareness of the fact that the war of the United States and others against Iraq was unlawful and illegal. It is very important to prevent the United States from further expanding its declared option of preemptive attack in the future. We must thwart any effort to create a new form of colonialism targeting Iraqi oil and other resources.
>> Some have argued that the United Nations has been dysfunctional in its treatment of the Iraqi problem. But this is a one-sided view. Diplomatic negotiations in the United Nations prevented U.S. military action for half a year, and the United Nations did not submit to U.S. pressures to adopt a resolution justifying the use of force. In this sense, it can be said that the United Nations did in fact perform its essential duty and did leave a record of historical significance.
>> As the victim of atom bombings, Japan knows the misery of war. Yet the government opted to support the attack on Iraq by the United States and others. The countries of the Middle East find the response of the Japanese government very difficult to understand. The dispatch of Self-Defense Forces to support the U.S. and British military goes against the will and hope of the Iraqi people for a reconstruction centered on the United Nations. I believe Japan's participation in the occupation and rule of Iraq constitutes a use of force and thereby violates the Constitution.
KANEKO Tetsuo (Social Democratic Party)
(Responding to Mr. NAKAGAWA Shoichi) >> I am in agreement with Mr. NAKAGAWA Shoichi regarding the need to verify the current conditions in Iraq and to ascertain what is expected of Japan and what Japan is capable of doing in the reconstruction effort. However, I believe that it is very important to consider all of this within the framework of the Constitution. The ruling parties have been advocating the dispatch of Self-Defense Forces since the end of the Golden Week holidays. Given that the resumption of hostilities remains a possibility, I believe the dispatch of Self-Defense Forces, which is regarded as military force by other countries, is problematic from the perspective of our relations with the countries of the Middle East.
>> While Japan should continue to contribute to UN-led efforts to maintain the international order, it is clear from the statement of Mr. SATO that the United Nations does in fact have various problems that must be resolved. Therefore, Japan should endeavor to promote UN reform, including the reform of the Security Council.
AKAMATSU Masao (New Komeito)
>> I do not subscribe to the view that the "Self-Defense Forces must be sent no matter what." On the other hand, considering the current condition of Iraq, the Self-Defense Forces are capable of responding appropriately to a variety of situations and their dispatch for assisting in the reconstruction of Iraq is fully justified on the following conditions: that the matter is first approved by the Security Council, and that the involvement of the Self-Defense Forces is restricted to rear echelon (logistic) support.
>> In order to dispatch the Self-Defense Forces to Iraq to provide postwar reconstruction support, I believe it will be necessary to ease the current standards for the use of weapons to allow the Self-Defense Forces to use so-called "B-type" arms and to engage in guard and escort tasks. However, on this point, I would like to mention the comments made by AKASHI Yasushi, chairperson of the Advisory Group on International Cooperation for Peace which proposed the drafting of legislation for the easing of regulations for the use of weapons. Attending a meeting of the New Komeito yesterday, Mr. AKASHI stated that while an easing of the standards for weapons use was needed over the medium to long terms, no such easing was necessary for supporting the reconstruction of Iraq. In any case, we need to discuss what the Constitution allows in terms of the use of weapons and the exercise of force, and what the limits of such use should be.
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
>> Dr. SUGANAMI (informant at the May 8, 2003 Subcommittee meeting) and Mr. KANEKO have expressed the view that peace diplomacy should be promoted. However, these views lack any perspective on the constitutional status of the Self-Defense Forces and possible modes of military contribution under the UN Charter. Systemic issues and policies related to responses to actual challenges should be considered separately. If all security policies were to be measured against constitutional arguments, that would preclude flexible responses and certainly would not contribute to the alleviation of the anxieties of the people.
>> The "sunshine policies" of the Republic of Korea are underwritten by the presence and activities of the U.S. and UN forces. For Japan to survive in the highly complex Asian region, on the one hand it must develop the diplomatic capabilities for promoting the policies of peace. On the other hand, it is indispensable for Japan to maintain thorough preparations for defending itself as a base for such diplomacy.
NAKANO Kansei (Democratic Party of Japan and Club of Independents)
>> There exists no forum for maintaining international order and for the melding of global opinions other than the United Nations. In light of this fact, Japan must make its best effort to resolve the various problems which exist in the United Nations, such as the enemy state clause and the permanent membership of the Security Council. Furthermore, we need to discuss the Constitution in connection with these matters.
>> It is said that the United States and Britain pursue policies which conform with their national interests, and the question of whether or not these policies fall within the bounds of the legal framework is judged only after the fact by the parliament and other institutions. On the other hand, in the case of Germany and France, it is said that policies are formulated within the established framework of the law. While Japan has chosen to walk with the United States and Britain, Japan's approach to policy determination is the same as that of Germany and France. This creates an inconsistency that has become very conspicuous today. In this connection, now is the time for considering a Constitution that will allow Japan to respond to the changes of the age while taking into account the advantages and disadvantages of having a rigid constitution which fairly describes the Constitution of Japan.
SHIMA Satoshi (Democratic Party of Japan and Club of Independents)
>> Under the current conditions, sending the Self-Defense Forces to support the reconstruction of Iraq is tantamount to the participation of the Self-Defense Forces in a multinational military force centered on the United States and Britain. I appreciate the government's desire to dispatch the Self-Defense Forces as a means of responding to a real problem. Nonetheless this represents a "supra-constitutional act." I question whether the legislative branch of government should allow such "supra-constitutional acts." Prime Minister KOIZUMI should be invited to the Research Commission on the Constitution as an informant to engage in thorough discussions on this point.
Report of the Subcommittee on Ideal Constitution as Supreme Law, and free
discussion
<<The Meiji Constitution and the Constitution of Japan: Formulation
Process of the Meiji Constitution>>
Report from the subcommittee chairperson (main points)
YASUOKA Okiharu (Subcommittee Chairperson)
>> In connection with research on the formulation process and actual application of the Constitution of Japan, it must be asked why Japan walked the path of war although the Meiji Constitution was amenable to liberal interpretations and application. This leads to the realization that politics plays an important role in the interpretation of various constitutional matters. Moreover, as we reflect on the guarantee of human rights and the structure of government and its management under the Meiji Constitution, we are led to reaffirm the need to examine the formulation process of the Constitution of Japan and the reality of its application.
>> The formulation process of the Meiji Constitution should not be
considered in the traditional terms of the Freedom and People's Rights
Movement against the pro-establishment camp. It is necessary to adopt a
perspective that integrates the two sides. Furthermore, we must develop
a new awareness of why the Meiji Constitution established the Emperor as
the genshu (head of state). That is, the intent was not so much to endow
the Emperor with vast powers but to apply restrictions on that power.
Free Discussion
HANASHI Nobuyuki (Liberal Democratic Party)
>> When drafting a constitution, one must not lose sight of the goal of creating a "new nation." Moreover, it is important to give due consideration to the history and the characteristics of the nation.
>> In this context, the present Constitution of Japan was imposed upon Japan by the General Headquarters of the Allied Powers (GHQ). Hence, in its formulation process, we find almost no evidence of a commitment to creating a "new nation" nor any discussion of the "characteristics" of the nation.
>> Today the Meiji Constitution is understood to have advocated "absolutism under the Emperor system" and is held in low regard. Personally, I believe that the Meiji Constitution adopted a "constitutional monarchy" system patterned after the British model.
>> The formulation of a constitution should be the product of the highest wisdom of the people of the time. At one point in the formulation process of the Meiji Constitution, we observe that both the government and private groups focused their minds on the "creation of a constitution." I am hopeful that as we move toward the drafting of a new constitution, the same kind of energy will once again come bubbling forth from among the people.
YAMAGUCHI Tomio (Japanese Communist Party)
>> The enactment of the Constitution of Japan took the form of a revision of the Meiji Constitution. But the Constitution of Japan adopts the principle of popular sovereignty and proclaims in the Preamble: "We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith." As is obvious from this, the Constitution of Japan came into force by rejecting the Meiji Constitution.
>> A clear awareness of the following three matters should be developed as we consider a constitution for the 21st century in light of the process of transition from the Meiji Constitution to the Constitution of Japan: (a) concerning sovereignty: the principle of "popular sovereignty" represents the global tide; (b) concerning the guarantee of fundamental human rights: in light of the enormous human rights problems which occurred throughout the world during the 20th century, the guarantee and protection of fundamental human rights must be placed at the center of any constitution; (c) concerning the principle of pacifism: commitment to permanent peace and other features of the present Constitution which should be passed on to the 21st century must be identified.
>> Concerning the question of why Japan advanced on the path to war under the Meiji Constitution, there was some discussion on whether this was due to the system itself or to how it was applied. It is my opinion that the fault is to be found in the Meiji Constitution itself which adopted the doctrine of "supreme command."
KITAGAWA Renko (Social Democratic Party)
>> I was moved to learn that various private drafts preceding the enactment of the Meiji Constitution contained provisions for fully developed guarantees of human rights, a ban on capital punishment and other matters which directly relate to the debates that are taking place today. I am also very interested in the theories of IROKAWA Daikichi, Professor of Tokyo Keizai University, who states that the GHQ draft which provided the basis for the present Constitution took into consideration private drafts which were being circulated at the time ("Outline of Constitution Draft" by SUZUKI Yasuzo and others). Furthermore, the SUZUKI proposals are said to have been based on a study of the drafts written by UEKI Emori. In light of these facts, I am left with the impression that a vital and uninterrupted stream of the "autonomous will of the people" underlies the entire process which began before the enactment of the Meiji Constitution and has continued to the present Constitution.
>> The following statements of Professor BANNO (informant at the May 8, 2003 Subcommittee meeting) have left a strong impression on me: "What kind of constitution we have becomes extremely important when the nation faces a crisis." "The war of aggression could have been avoided if a liberal direction had been taken in constitutional interpretation in 1931." Looking at it from this perspective, I was again made aware of the truth that constitutions are affected by the forces of the particular age and by foreign countries.
>> I believe Professor BANNO was the first person participating in the Research Commission on the Constitution to shed light on the private drafts of the constitution written during the Meiji Period. The principles that were passed on through these private drafts underlie our present Peace Constitution, and I strongly feel that it is our task to utilize and to preserve the vitality of this current.
ENDO Kazuyoshi (New Komeito)
>> I was deeply impressed by the following answer given by Professor BANNO to the question of whether the Meiji Constitution was itself responsible for the loss of control of the military, or whether blame should be placed on the politicians responsible for applying the Constitution: "Blame can be assigned four-to-six, with the majority of the blame going to the latter."
>> The Imperial Diet was established only after the promulgation of the Meiji Constitution, meaning that the Meiji Constitution was enacted without the deliberations of a constitutional assembly. For this reason, there are no minutes from meetings preceding the Constitution, and there was no unified interpretation at the time of its promulgation and after. This later generated many problems. From the point of view that there should be only one interpretation of the Constitution, I believe that these matters should be taken into consideration in the future.
Report of the Subcommittee on Guarantee of Fundamental Human Rights, and
free discussion
<< Right to Know, Right of Access and Right to Privacy: Including
Legislation Concerning Information Disclosure and Protection of Personal
Information>>
Report by the subcommittee chairperson (main points)
OIDE Akira (Subcommittee Chairperson)
>> The question was considered whether explicit provisions concerning the right to know, the right of access and the right to privacy should be included in the Constitution. While some supported the inclusion of explicit provisions, others argued that this was not necessary because these rights were fully supported by the provisions of Articles 13 and 21, and that greater importance should be attached to actualizing these rights through the enactment of necessary laws.
>> Regarding the protection of personal information, some argued that the privacy of individuals who are in a weaker position as recipients of information should be protected from being violated by the mass media which wields enormous power as the transmitter of information. Others argued that the freedom of expression should be respected and preserved, and the mass media should not be regulated. Regarding the question of how to harmonize the freedom of the press and the right to privacy, the view was voiced that some form of non-governmental, third-party agency should be given the task of checking the media, such as an ombudsman system.
>> The right to know, the right of access and the right to privacy
constitute what have been called the "new human rights." These
are rights that have been actively discussed since the end of the war.
They are closely linked to the lives of the people and are the subject
of intense interest. Therefore, it was felt that discussions concerning
these rights must be deepened from the perspective of actualizing the principles
of the Constitution.
Free Discussion
KOBAYASHI Kenji (Democratic Party of Japan and Club of Independents)
>> The recently enacted Law Concerning Protection of Personal Information is problematic in that its provisions apply comprehensively to the entire private sector. I believe separate laws should have been enacted for each specific segment. I believe there is a need to enact particularly strict laws for the fields of finance, communications and medical services where any leakage of information can lead to grave infringements of privacy.
>> There are many unresolved issues concerning laws for the protection of personal information. This can be confirmed from the following argument: if the mass media are seriously undermining the privacy of individuals, in order to protect the human rights of the people while also guaranteeing the media's freedom of expression, it is necessary to establish some form of third-party agency, which is independent of the government, to keep a check on the situation.
>> The application of the Law Concerning Protection of Personal Information will give rise to various problems. The law should be reviewed within three years in light of the problems that arise in its application.
ITO Kosuke (Liberal Democratic Party)
>> Japan in the 21st century must be a country centered on science and technology, but it must also be a country of advanced environmental standards. For this purpose, the new constitution should contain explicit provisions concerning environmental rights.
>> The period of accelerated economic growth in the 1960s gave rise to serious pollution problems, leading to the argument that support for environmental rights can be found in Articles 13 and 25 of the Constitution. However, environmental rights have never been explicitly recognized in the decisions of the Supreme Court.
>> Environmental preservation is a key concern for all countries, and the constitutions of numerous countries contain explicit provisions concerning the environment. While various points remain that require further examination, when considering the future of Japan, I believe that environmental rights should be explicitly mentioned in the Constitution.
HARUNA Naoaki (Japanese Communist Party)
>> The response of Dr. HORIBE (informant at the May 15, 2003 Subcommittee meeting) to the question "Why is Japan 20 to 30 years behind Europe and America in developing systems for information disclosure?" has left a deep impression on me. He responded: "Government and the bureaucracy strongly resisted changes in established practices."
>> The right to know, the right of access and the right to privacy were established on the basis of Article 13 and as a result of popular movements, the accumulation of legal precedence and the continued efforts of scholars. What is really needed now is the enactment of these rights into law.
>> The series of laws for the protection of personal information contain numerous faults. First, the law concerning government administration and agencies fails to prohibit the gathering of information on such matters as personal ideology and creed. Secondly, the basic law pertaining to the private sector provides for a system of state minister of principal responsibility.
>> Infringement of personal rights by administrative agencies with access to enormous volumes of information has come to light. The gathering of information concerning people of eligible age by the Defense Agency is a case in point. On the other hand, during the recent deliberations on the personal information protection bills, the opposition parties proposed the explicit mention of the "right to control one's own information." But this was rejected on the grounds that "this right is still in the process of being defined and established." To ensure that new rights take root, it is important to get to the bottom of why politicians are obstructing the move to create explicit provisions in the law that will protect the people from the infringement of their rights.
KITAGAWA Renko (Social Democratic Party)
>> Appearing before the House of Councillors Special Committee on the Protection of Personal Information, Dr. HORIBE stated that the newly enacted Law Concerning Protection of Personal Information needed to be examined in the future, including the establishment of a third-party agency for the protection of personal information, and a review of the definition of businesses engaged in the handling of personal information. The interim report published in 1999 by the study group (Chairperson HORIBE) contained a vision for the enactment of a basic law and a series of specific laws. On this point also, the recently enacted legislation differs from the views expressed by Dr. HORIBE.
>> When the personal information protection bills were being debated, two fundamentally different laws - the "law concerning government administration and agencies" and the "basic law" which addresses the private sector - were lumped together into one debate. This hindered the deliberations from gaining appropriate depth.
]>> Yesterday, the Council for the Protection of Personal Identification Information of Nagano Prefecture concluded that the Law Concerning Protection of Personal Information was not adequate and recommended the prefecture quit the Basic Residential Register Network System. Ultimately, privacy cannot be perfectly protected. Therefore, the Social Democratic Party will join forces with citizens and workers to promote the protection of personal information and to call for the freeze and abolition of the Basic Resident Register System.
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
>> There are people who argue that the right to privacy, the right to know, or the transfer of tax resources to local governments constitute extremely vital rights and principles for the people. But when the discussion extends to whether these rights should be written into the Constitution, they respond that this is unnecessary and that the enactment of a basic law is sufficient. However, there is an obvious difference in the level of abstraction of the Constitution as the supreme law and specific laws. Because the Constitution is both the supreme law of the land and the most abstract expression of the law, it covers everything and important matters should be explicitly written into the Constitution.
>> For instance, judging from the awareness of the people, political conditions and global developments, we can assume that environmental problems and the issue of privacy will be very important for Japan in the 21st century. For the purposes of reaching some conclusion on such vital matters and determining what we want our country to be, explicit provisions should be added to the Constitution as the supreme law.
HANASHI Nobuyuki (Liberal Democratic Party)
>> The Constitution should contain explicit declarations on matters such as "environmental rights" which have an important bearing on what we want the future of our nation to look like.
>> As an example, I would like to mention the "right of city planning." During our inspection tour of Germany, I was very impressed to see how residents and local governments are actively involved in city planning. A certain scholar has voiced the following suggestion: "Because 'urban planning' will be very important for the future of Japan, the 'right of city planning' should be explicitly established in the Constitution." This leads me to conclude that, in the future, there will be a need to discuss the right of city planning.
SAITO Tetsuo (New Komeito)
>> The mass media hold great power and violation of human rights has reached very serious proportions. It is said that the print media consider compensation payments when successfully sued to be a necessary expense of doing business. On the other hand, when sued, the visual media have no obligation to submit the footage that is the cause of the suit. As such, persons being covered by the media are placed in a weak and disadvantageous position. Self-regulation of news organizations and the raising of media literacy are not enough to solve these problems. We need to consider the introduction of a system of punitive damages.
KURATA Masatoshi (Liberal Democratic Party)
>> Invasion of privacy by the mass media is a serious problem and it is right to demand self-regulation. But this will not suffice. As can be seen by the proposals made during Subcommittee discussions, that attention should be paid to developing the ombudsman system, I think an effective means for checking the mass media would be to establish a third-party agency for this purpose that is independent of the government. However, for such an organization to function effectively, it would have to be granted substantial powers by law. For instance, it should be empowered to order an apology and to bring legal action if its order is not obeyed.
Report of the Subcommittee on Ideal Government and Organizations, and free
discussion
<<Judicial System and Constitutional Court: From the Perspective
of the Authority to Interpret the Constitution>>
Report from subcommittee chairperson (main points)
SUGIURA Seiken (Subcommittee Chairperson)
>> Should the courts hand down constitutional rulings on political issues? Views were heard both for and against such rulings. In this connection, questions were asked and views expressed on where the authority to interpret the Constitution resides, and the pros and cons of adopting a constitutional court system. Furthermore, questions were asked and views expressed concerning whether the government can alter its constitutional interpretations, and concerning the status of the Cabinet Legislation Bureau and the status of the Legislative Bureaus of the Diet. The legislative, executive and judiciary branches each engage in interpreting the Constitution from their own positions. The question of what to make of the interrelation of these interpretations certainly constitutes an important issue that is linked directly to the question of ideal government and organizations.
>> We intend to continue discussing, from various angles, the ideal
government and organizations for the 21st century, and furthermore, what
we want our country to be in the future.
Free Discussion
TANIKAWA Kazuo (Liberal Democratic Party)
>> The international environment that Japan finds itself in has changed dramatically since the promulgation of the Constitution. The face-off between the United States and the Soviet Union has come to an end and the pressing issues of the day include international terrorism and how Japan can contribute to the international society. As we possess a written constitution, we face the need to constantly revise the Constitution to match the changing times. Specifically, I believe the revision of the following matters should be undertaken: provisions of Article 9; the inclusion of explicit constitutional provisions concerning national emergencies; the strengthening of the provisions of Chapter 8 of the Constitution (local self-government); and, the revision of amendment procedures.
>> To cope with the dizzying pace of change in international affairs, Japan must be able to make clear and prompt constitutional decisions. A constitutional court should be established for this purpose. Regarding the argument that a ruling of unconstitutionality signifies a rejection of the democratic will of the majority as expressed by the Diet, I believe this problem can be surmounted by empowering the Diet to appoint the justices.
>> Article 76 Paragraph 2 prohibits the establishment of extraordinary tribunals and forbids giving final judicial power to any organ or agency of the Executive. These provisions reflect Japan's prewar experience whereby judiciary powers existed as part of executive power, and do not meet the realities of the present age. The pros and cons of maintaining these provisions should be discussed.
NAKANO Kansei (Democratic Party of Japan and Club of Independents)
>> The Japanese people are very fond of "philosophical arguments." To be able to finalize an authoritative constitutional interpretation, we need to establish a constitutional court on the German model.
>> Assume the following interpretations were to be adopted: (a) the Self-Defense Forces are unconstitutional; (b) Japan possesses the right to collective self-defense but cannot exercise this right. If such interpretations were correct, then it would have been enough to simply state under Article 9 that Japan renounces war.
>> Those who oppose the idea of a constitutional court issuing final and authoritative constitutional interpretations should advocate the revision of the Constitution. We should design a system in which the Diet is empowered to decide what to do if a question arises with the authoritative interpretations issued by a constitutional court or if these interpretations undermine the best interests of the people.
SUGIURA Seiken (Liberal Democratic Party)
>> Article 51 of the UN Charter recognizes individual and collective self-defense as an "inherent right." On the other hand, if read directly, Article 9 of the Constitution rejects the right of self-defense. I cannot understand how the government interprets that Japan has the right of self-defense but then proceeds to conclude that "Japan possesses the right of collective self-defense but cannot exercise this right."
>> If the interpretations of the government are the product of logical investigation and cannot be modified, then the Constitution should be revised. But because the very demanding amendment procedures make revision difficult, we should consider altering the existing interpretations.
>> Japan should clearly indicate that it is able to exercise the right to collective self-defense. Having done that, it should then greatly strengthen its alliance with the United States, not only in the economic and cultural spheres, but also in military terms. We must have the courage to say that Japan will fight alongside the United States should the United States come under attack. I would urge the government to alter its current interpretations concerning the exercise of the right to collective self-defense.
SUEMATSU Yoshinori (Democratic Party of Japan and Club of Independents)
>> In reality, it is the Cabinet Legislation Bureau that is currently responsible for issuing authoritative constitutional interpretations. Furthermore, given its position as the ultimate interpretative authority within the government and its consequent ability to readily utilize government information, the Cabinet Legislation Bureau is able to promptly issue interpretations. As a result, what we have is a situation in which the Cabinet's policies are effectively determined by the Cabinet Legislation Bureau.
>> It is unrealistic to expect the people to seek constitutional interpretations from the Supreme Court. There is always the question of beneficial interest, and it is difficult to sustain prolonged trials. Furthermore, for various reasons, there are serious obstacles to seeking ultimate interpretations from the courts. For instance, the question arises whether the justices are truly well informed of the lives of the people. Also, there is a marked tendency on the part of the courts to avoid ruling on high-level political issues.
>> The constitutional judgments rendered by the Cabinet Legislation Bureau can very easily be slanted to the advantage of the particular government in office. For this reason, a constitutional court should be established and empowered to undertake judicial review in the abstract, allowing it to render speedy constitutional interpretations. When an interpretation rendered by the constitutional court is found to be questionable, this should be countered by discussions of constitutional revision. I believe such a process will contribute to the development of the Constitution.
OKUNO Seisuke (Liberal Democratic Party)
>> The debate of preserving the Constitution versus revising the Constitution has raged since the conservative and progressive camps were each integrated into single political parties in 1955. This debate has continued because of the specific properties of the present Constitution. The two-thirds majority required in both Houses of the Diet to initiate an amendment should be eased to allow the Diet to respond to changes in the environment in a timely fashion and to engage in flexible revision of the Constitution.
>> The present Constitution was created during the GHQ occupation and under various constraints. The provisions of the Constitution concerning religion are in conflict with the provisions contained in the Fundamental Law of Education. These and various other problems must be resolved through revision of the Constitution, and not through the creation of a constitutional court which would be based on the present Constitution.
>> In the present judicial system, rulings are primarily made from the perspective of the rights and duties of the people. But in contemporary administrative cases, the courts must be able to make decisions that take into account a broad range of concerns, such as the welfare and security of the people. For this reason, we must assign priority to discussing the establishment of administrative litigation courts.
NAKANO Kansei (Democratic Party of Japan and Club of Independents)
(Responding to Mr. OKUNO)
>> Mr. SUEMATSU and myself are not opposed to revision. We advocate creating a constitution which corresponds to the new age. My proposal for the establishment of a constitutional court is predicated on its inclusion in such a new constitution.
>> If a constitutional interpretation issued by this constitutional court is found to be problematic, my thinking is that the Diet should be empowered to ultimately decide what should be done.
YAMAGUCHI Tomio (Japanese Communist Party)
>> I do not favor the creation of a constitutional court. Article 81 empowers the Supreme Court to determine the constitutionality of any law. Why has this failed to function? The blame does not rest with the current system. We should realize that what is required is the vigorous application of this power.
>> I support the view that the Cabinet Legislation Bureau's interpretation of Article 9 should be revised. But any such revision must be made in the right direction and must be based on the realization that the present Constitution does not recognize the right to collective self-defense. Furthermore, I believe it is the duty of the legislative branch to consider how it can actualize the intent of Article 9.
>> Some argue that the present Constitution was "imposed" upon Japan in its formulation process. It is true that the first draft was prepared by GHQ. But later, some very meaningful changes and additions were made in the contents of the first part of Article 9 Paragraph 1 and Article 14 by the enacting Diet. Furthermore, the present Constitution has been supported by the people and applied for more than 50 years. In light of these facts, the Constitution cannot be argued to have been "imposed."
INOUE Kiichi (New Conservative Party)
>> The power of judicial review should not be restricted to the Supreme Court. I believe a constitutional court should be created within the Diet and empowered to rule on such high-level political issues as the so-called "acts of state" and the constitutionality of laws pertaining to political conditions.
>> Regarding the interpretation of Article 9, the right to self-defense covers both the right to individual and collective self-defense. Moreover, I believe that Article 9 forbids acts of aggression, but has nothing to say about the right to self-defense. In this sense, the Cabinet Legislation Bureau's interpretations of Article 9 are very unnatural and smack of grafting a bamboo cane onto a tree.
KANEKO Tetsuo (Social Democratic Party)
>> Mr. YAMAGUCHI (informant at the May 15, 2003 Subcommittee meeting) expressed the opinion that the power of judicial review has failed to function because the justices of the Supreme Court are not elected by the people. For sake of argument, let us say that he is correct. That would lead to the conclusion that the establishment of a constitutional court would generate the same result if the justices are not elected by the people. What we really need is for the Supreme Court itself to fully perform the function of judicial review given to it under the Constitution and in conformity with the principle of the separation of powers. I believe this is how the problems of passivity in judicial review can be solved.
>> Constitutional interpretations tend to expand in scope over time. What we really need to do is to modify current constitutional interpretations and politics to conform to the text of the Constitution. For this purpose, the Research Commission on the Constitution should engage in active discussions based on the text of the Constitution.